(HC) Vaca v. Cate, No. 2:2010cv01077 - Document 15 (E.D. Cal. 2010)

Court Description: ORDER AND FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 11/23/2010 ORDERING that the 12 order to show cause is DISCHARGED; and RECOMMENDING that respondent's 11 motion to dismiss be granted. Referred to Judge Morrison C. England, Jr.; Objections due w/in 21 days. (Yin, K)
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(HC) Vaca v. Cate Doc. 15 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 SALVADOR MENDEZ VACA, 11 12 13 Petitioner, No. 2:10-cv-1077 MCE KJN P vs. MATTHEW CATE, 14 ORDER AND Respondent. 15 FINDINGS AND RECOMMENDATIONS / 16 Petitioner is a state prisoner proceeding without counsel with an application for a 17 writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is presently before the court on 18 respondent’s motion to dismiss based on the contention that petitioner’s claims are barred by the 19 statute of limitations. In response to an order to show cause issued by this court on October 19, 20 2010, petitioner has now filed an opposition to respondent’s motion. For the following reasons, 21 this court recommends that respondent’s motion be granted. 22 I. Introduction 23 Petitioner pled guilty in September 1996 to four counts of transporting heroin and 24 two counts of possession of heroin for sale. Petitioner was sentenced to eight years in state 25 prison, but the sentence was stayed and petitioner was placed on probation. In July 2007, 26 petitioner was found to have violated probation and the previously stayed sentence was imposed. 1 Dockets.Justia.com 1 Petitioner is currently incarcerated at the Sierra Conservation Center in Jamestown, California. 2 II. Legal Standards 3 The Antiterrorism and Effective Death Penalty Act (“AEDPA”), enacted on April 4 24, 1996, applies to all petitions for writs of habeas corpus filed after its enactment. Lindh v. 5 Murphy, 521 U.S. 320 (1997); Ainsworth v. Calderon, 138 F.3d 787, 790 (9th Cir. 1998). 6 Under AEDPA, a petitioner must first exhaust his state court remedies before timely filing a 7 petition for writ of habeas corpus in federal court. AEDPA sets forth the following legal 8 standards relative to the applicable statute of limitations: 9 10 11 12 13 14 A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of – (A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review; (B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action; 15 16 17 18 (C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or 19 (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. 20 28 U.S.C. § 2244(d)(1). In addition, Section 2244(d)(2) provides that “the time during which a 21 properly filed application for State post-conviction or other collateral review with respect to the 22 pertinent judgment or claim is pending shall not be counted toward” the limitations period. 23 III. Discussion 24 The following chronology is relevant to the statute of limitations analysis: 25 1. On September 16, 1996, petitioner pled guilty and was convicted of four 26 counts of transporting heroin and two counts of possession of heroin for sale. Petitioner was 2 1 sentenced to eight years in state prison; however, the sentence was stayed and petitioner was 2 placed on probation. Petitioner did not then appeal his conviction or sentence. (Lodged 3 Document (“Ldgd. Doc.”) No. 1.)1 4 2. On July 13, 2007, petitioner was found to have violated probation by failing to 5 report to probation officials since January 26, 1998, and the previously-stayed sentence was 6 imposed. (Id.) 7 3. On April 18, 2009,2 petitioner filed a petition for writ of habeas corpus in the 8 Sutter County Superior Court, alleging that he had been coerced into a plea agreement and that 9 his sentence and probation had been improperly imposed due to petitioner’s status as an illegal 10 alien which allegedly made it impossible for petitioner to comply with the terms and conditions 11 of probation beyond serving a period of incarceration. (Ldgd. Doc. No. 2.) The petition was 12 denied on June 9, 2009, the superior court judge noting in pertinent part that petitioner had failed 13 to raise his contentions in a timely appeal from his judgment of conviction. (Ldgd. Doc. No. 3.) 14 (Case Nos. CRHC96-0108901, and CRHC96-0134901.) 15 4. On June 14, 2009, petitioner filed a petition for writ of habeas corpus in the 16 California Court of Appeal, Third Appellate District, raising the same issues set forth in his 17 petition before the Superior Court. (Ldgd. Doc. No. 4.) The petition was summarily denied on 18 July 30, 2009. (Ldgd. Doc. No. 5.) (Case No. C062430.) 19 5. On August 27, 2009, petitioner filed a petition for writ of habeas corpus in the 20 1 21 22 23 24 25 26 All documents identified as Lodged Documents were filed by respondent on June 30, 2010. (See Dkt. No. 10.) 2 April 18, 2009 is the date on which petitioner, proceeding without counsel, signed and presumably delivered his state Superior Court habeas petition to prison officials for mailing. (Lodged Document No. 2.) Pursuant to the “mailbox rule,” that date is considered the filing date of the petition. See Stillman v. Lamarque, 319 F.3d 1199, 1201 (9th Cir. 2003); see also, Houston v. Lack, 487 U.S. 266 (1988) (notice of appeal by pro se prisoner is deemed filed at the moment the prisoner delivers it to prison authorities for forwarding to the clerk of court). Further references to the filing dates of petitioner’s pleadings also apply this construction, as none contain a proof of service indicating the date petitioner in fact delivered his pleadings to prison authorities. 3 1 California Supreme Court, again raising the same issues. (Ldgd. Doc. No. 6.) The petition was 2 summarily denied on February 24, 2010. (Ldgd. Doc. No. 7.) (Case No. S175931.) 3 4 6. On April 20, 2010, petitioner filed the instant petition for writ of habeas corpus. (Dkt. No. 1.) 5 Petitioner’s sentence imposed on July 13, 2007, became final on September 11, 6 2007, when the sixty-day period for filing a direct appeal expired. See Cal. Rules of Court 8.308 7 (formerly Rule 30.1). The AEDPA one-year statute of limitations period commenced to run the 8 following day, on September 12, 2007. 28 U.S.C. § 2244(d)(1)(A). Thus, absent tolling of this 9 one-year period, the last day that petitioner could timely file his federal petition was September 10 11, 2008. 11 While the timely filing of a state petition for writ of habeas corpus will toll the 12 one-year limitations period, 28 U.S.C. § 2244 (d)(2), petitioner filed his first petition in Superior 13 Court over seven months after expiration of the statute of limitations (petition filed April 18, 14 2009, despite expiration of the statute of limitations on September 11, 2008). Petitioner’s next 15 two state petitions were, therefore, also filed after expiration of the statute of limitations. Thus, 16 none of petitioner’s state actions statutorily tolled the one-year statute of limitations period. 17 As a result, absent equitable tolling, the instant federal petition, filed April 20, 18 2010, was untimely filed more than nineteen months after expiration of the September 11, 2008 19 limitations deadline. 20 Petitioner contends that he was “reasonably confused” about the timeliness of his 21 petition because he is unfamiliar with the law, does not understand respondent’s motion, and 22 because Spanish is his first language, implying that he is entitled to equitable tolling on these 23 bases. Petitioner cites Pace v. DiGuglielmo, 544 U.S. 408, 416 (2005), for the principle that, “[a] 24 petitioner’s reasonable confusion about whether a state filing would be timely will ordinarily 25 constitute ‘good cause’ for him to file in federal court.” (citation omitted.) (Opposition, Dkt. No. 26 13, at 3.) 4 1 To be entitled to equitable tolling, petitioner bears the burden of establishing 2 “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance 3 stood in his way.” Pace, 544 U.S. at 418. 4 Here, petitioner has not demonstrated that he has pursued his claims diligently. 5 Although petitioner acted diligently once he filed his initial state court petition, he waited nearly 6 two years after his July 13, 2007 sentence to initiate that first state filing on April 18, 2009. 7 Thus, petitioner has not satisfied his burden of establishing that he acted diligently in filing his 8 federal petition. 9 Petitioner has also failed to demonstrate that he encountered extraordinary 10 circumstances. The Ninth Circuit has held that a petitioner’s pro se status and claims of 11 ignorance of the law are insufficient to justify equitable tolling. See Raspberry v. Garcia, 448 12 F.3d 1150, 1154 (9th Cir. 2006) (“a pro se petitioner’s lack of legal sophistication is not, by 13 itself, an extraordinary circumstance warranting equitable tolling”); Hughes v. Idaho State Bd. of 14 Corr., 800 F.2d 905, 909 (9th Cir. 1986) (pro se prisoner’s illiteracy and lack of knowledge of 15 law “unfortunate” but may not serve as “legitimate cause” for failing to meet habeas petition 16 deadlines); Fisher v. Ramirez-Palmer, 219 F. Supp. 2d 1076, 1080 (E.D. Cal. 2002) (“ignorance 17 of the law does not constitute such extraordinary circumstances”); Sperling v. White, 30 F. 18 Supp.2d 1246, 1254 (C.D. Cal. 1998) (citing with approval cases from various circuits rejecting 19 equitable tolling based on petitioner’s illiteracy or lack of legal experience). Accordingly, 20 petitioner’s lack of knowledge of the law and limited English do not qualify as extraordinary 21 circumstances preventing petitioner from timely filing his federal petition. 22 The court concludes, therefore, that petitioner is not entitled to equitable tolling. 23 This result is consistent with AEDPA’s purpose in reducing delay and furthering the principles of 24 comity, finality and federalism. Woodford v. Garceau, 538 U.S. 202, 206 (2003) (citations and 25 internal quotations omitted.) 26 //// 5 1 For the foregoing reasons, respondent’s motion to dismiss this action should be 2 granted. 3 IV. Conclusion 4 In accordance with the above, IT IS HEREBY ORDERED that: 5 1. The order to show cause issued October 19, 2010, is discharged. 6 In addition, IT IS HEREBY RECOMMENDED that: 7 1. Respondent’s motion to dismiss this action (Dkt. No. 11) be granted. 8 These findings and recommendations are submitted to the United States District 9 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty- 10 one days after being served with these findings and recommendations, any party may file written 11 objections with the court and serve a copy on all parties. Such a document should be captioned 12 “Objections to Magistrate Judge’s Findings and Recommendations.” If petitioner files 13 objections, he shall also address whether a certificate of appealability should issue and, if so, why 14 and as to which issues. A certificate of appealability may issue under 28 U.S.C. § 2253 “only if 15 the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. 16 § 2253(c)(3). Any response to the objections shall be filed and served within fourteen days after 17 service of the objections. The parties are advised that failure to file objections within the 18 specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 19 F.2d 1153 (9th Cir. 1991). 20 DATED: November 23, 2010 21 22 23 _____________________________________ KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE 24 25 vaca1077.mtd 26 6